stating that a petitioner will prevail only if he “can show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict” (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555) (internal quotation marks and citations omitted)
How later courts described this case
- stating that a petitioner will prevail only if he “can show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict” (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555) (internal quotation marks and citations omitted)
- stating that the court had “no reason to believe that an undisclosed agreement was the true reason” that the prosecutor wrote a letter to the parole board on behalf of the witness where the prosecutor attested that no agreement existed and the petitioner was “[w]ithout evidence to the contrary”
- holding that evidence of a witness’s expectation of favorable treatment was not material where it merely would have bolstered an attack on credibility already made at closing
- reviewing a defendant’s claim that the government should have disclosed to the defense counsel notes of an interview with a witness that indicated that the witness expected early parole in exchange for the testimony given at trial under Brady
Written by the judges who cited it.
The opinion
MARTHA CRAIG DAUGHTREY, Circuit Judge,
dissenting in part and concurring in part.
I agree with Judge Moore that rehearing en banc was improvidently granted in this case and, for that reason, I would vacate the order granting rehearing and reinstate the panel opinion. The disposi-tive question in this section 2241 matter boils down to the sufficiency or insufficiency of the evidence presented on the petitioner’s behalf in district court and, therefore, fails to meet the requirements of Federal Rule of Appellate Procedure 35(a).
That said, however, because the panel opinion has been vacated by order of a majority of the court, it becomes necessary to redetermine the principal issue raised on appeal. On that score, I would vote in conformity with the majority’s analysis of the facts and hold that the evidence fails to establish the existence of a tacit agreement between the state prosecutor, Miller, and the state’s witness, Davenport.